Wednesday, July 28, 2004

Case of Mark Anthony Wares

Case of Mark Anthony Wares
(AKA: Mark Wares, Mark A. Wares)

Hutchinson, KS

Convicted of aggravated sexual battery and making a terrorist threat.(2) While on parole from these charges, he was convicted of kidnaping and aggravated battery. He is presently serving a sentence of twenty to forty-five years.

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Table of Contents:  

  1. Kansas Adult Supervised Population Electronic Repository (KASPER)  (07/28/2004)
  2. Kansas prisoner wins case involving Jewish holiday (07/27/2004)
  3. In the United Sates District Court District of Kansas (07/27/2004)
  4. United States Court of Appeals (12/14/2004)
  5. In The United Statess District Court district of Kansas

Kansas Adult Supervised Population Electronic Repository (KASPER)

WARES, MARK A (KDOC # 0045907)  -  Current as of: July 27, 2004

Conviction:  WARES, MARK A


Birthdate: Aug 04, 1961

Current Status reported by Dept. of Corrections
Current          Status Date        Current Location
Incarcerated         Apr 24, 1992          Out-of-State

Eye Color         Hair Color             Height      Weight          Gender Race
Green             Blond or Strawberry   6'4"              210             Male White

Case         Offense       Conviction       Criminal Conviction    Counts   Crime Severity  Case Number      Date          Date             Description                           Level           Status
87CR104      Jun 05, 1987       Dec 11, 1987     Aggravated Sexual Battery      1         Class D Felony      Active
87CR104      Jun 05, 1987       Dec 11, 1987     Terroristic Threat                1         Class E Felony      Active
91CR572      Nov 23, 1991      Apr 17, 1992     Aggravated Battery              1         Class C Felony       Active
91CR572      Nov 23, 1991      Apr 17, 1992    Kidnapping                       1         Class B Felony      Active

KDOC Disciplinary Report(s) since January 1996
Date               Class             Location                             Type of report
Jun 19, 2001         1          Hutchinson Correctional Fac. - Central               DISOBEYING ORDERS
May 31, 2001       1           Hutchinson Correctional Fac. - Central              DISOBEYING ORDERS
Apr 24, 2001        1          Hutchinson Correctional Fac. - Central              DISOBEYING ORDERS
Apr 13, 2001        1          Hutchinson Correctional Fac. - Central              DISOBEYING ORDERS
Nov 30, 1998       1           Hutchinson Correctional Fac. - Central              DISOBEYING ORDERS
Oct 21, 1997        2           Hutchinson Correctional Fac. - Central              Violation of Published Orders


Kansas prisoner wins case involving Jewish holiday
By DAN MARGOLIES - Columnist
Kansas City Star, MO - Tuesday, July. 27, 2004

Few non-Jews are familiar with the Jewish holiday of Sukkot, otherwise awkwardly translated into English as the Feast of Tabernacles.
The biblically ordained holiday is the Jewish festival of thanksgiving for the final gathering of the harvest. It also commemorates the wanderings of the ancient Israelites in the wilderness before their conquest of the land of Canaan and entrance into their promised land.
Traditional Jews celebrate the holiday by erecting a sukkah, or small makeshift enclosure, designed to recall their forbears' living conditions in the wilderness. (The holiday's name, Sukkot, is the plural in Hebrew of sukkah.)

Mark A. Wares, an inmate at the Hutchinson Correctional Facility who said he "acknowledged Judaism as his way of life" in 1996, wanted to erect one, too. But the then-prison chaplain initially refused his request. He said that placing a napkin over Wares' head would fulfill the biblical injunction to dwell in a sukkah during the weeklong holiday.
Eventually the prison acceded to Wares' request, but prison officials refused to stake down the structure to keep it from being blown over by the wind. The officials said the stakes posed a security concern.
So Wares, represented by lawyers at Shook Hardy & Bacon, sued the chaplain and other prison officials, alleging he was denied his religious rights under the First Amendment.
The case went to a jury trial in U.S. District Court in Kansas City, Kan. Earlier this month, following three days of testimony, the jury found for Wares and awarded him $1 in nominal damages and $1,000 in punitive damages against the former chaplain, D.A. VanBebber. The other officials were found not liable.
The result was particularly remarkable given that the jury was allowed to hear evidence about why Wares was in prison in the first place. Although U.S. District Judge John Lungstrum imposed some limitations on the evidence, the jury heard that Wares was convicted in 1987 of aggravated battery and in 1992 of aggravated battery and kidnapping.
"I was really impressed with the jury. They were attentive and seemed to care. They took their job very seriously," said Matt Miller, who tried the case with colleague Scott Nehrbass.
Nehrbass, who tried a similar case five years ago involving an inmate who was refused kosher meals (by the same chaplain), said jurors were asked not to judge Wares by his past.
A crucial evidentiary ruling involved that earlier case, brought by inmate Jimmy Searles. Lungstrum allowed jurors to hear evidence of the verdict in the Searles case by way of showing that VanBebber had "recklessly disregarded the religious rights of the same group of Jewish inmates," Nehrbass said.
The jury awarded Searles $3,650 in compensatory damages and $42,500 in punitive damages. The 10th U.S. Circuit Court of Appeals later threw out the compensatory award, ruling that the Prison Litigation Reform Act of 1996 bars damages for mental and emotional injuries in the absence of a physical injury. Because the punitive award was tied to the compensatory award, the court threw out the punitive-damage award as well.
The court concluded that "a reasonable jury" could find from the evidence that the defendant's actions "were in reckless disregard of the plaintiff's rights." The court then ordered a retrial on the issue of punitive damages alone, but the case was settled on confidential terms before going to trial.
Because of that earlier 10th Circuit ruling, the jury in Wares' case was limited to awarding nominal compensatory damages. But the nominal $1 award "was a symbol that his rights were violated" and served as the predicate for the punitive-damage award, Nehrbass said.
Nehrbass was appointed by the court to represent Wares, just as he was appointed to represent Searles. (Appointing a lawyer from a firm called Shook Hardy & Bacon to represent someone wanting to keep kosher showed that the court had a wry sense of humor or was oblivious to the irony of the appointment.) Normally given to trying torts and business cases, Nehrbass, if only by default, has become something of a prisoner rights' expert — at least regarding matters pertaining to Jewish ritual.
"I do seem to have become the counsel of choice for Jewish inmates," said Nehrbass, who is not Jewish.


May 28, 2004

Page 1
WARES,Plaintiff,v.Case No. 99-3362-JWLD.A. VANBEBBER, et
al.,Defendants.MEMORANDUM AND ORDERPlaintiff Mark A. Wares brought this civil rights action alleging that defendantsVanBebber, Green, Geither and Bruce substantially interfered with his right to freely exercisehis religion as guaranteed by the First Amendment. In particular, Mr. Wares alleges thatdefendants interfered with his right to observe the Jewish holiday of Sukkot in 1997 through 2000 by failing to initially provide him with a Sukkah booth and, once one was provided, byfailing to take measures to properly secure it in the prison yard. Mr. Wares seeks nominal andpunitive damages to remedy these alleged violations. The matter is presently before the court on defendants' motion for summary judgment(Doc. 142). Therein, defendants argue that summary judgment is proper because: (1) Mr.Wares failed to establish that prison officials violated his rights under the Free ExerciseClause; (2) defendants are entitled to qualified immunity; and (3) the Prison Litigation ReformAct ("PLRA") precludes Mr. Wares from recovering nominal and punitive damages. As set
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2 forth in more detail below, defendants' motion for summary judgment is granted in part anddenied in part. First, the court denies defendants' motion as to Mr. Wares' claims related to theobservance of Sukkot in 1998, 1999 and 2000 because plaintiff has demonstrated a factualdispute as to whether defendants' conduct was reasonably related to legitimate penologicalinterests. The court, however, grants summary judgment as to Mr. Wares' claim related to theobservance of Sukkot in 1997 because he never requested any religious accommodations from prison officials. Second, the court denies defendants' motion for summary judgment on thegrounds of qualified immunity because the summary judgment evidence, when viewed in thelight most favorable to Mr. Wares, demonstrates that the defendants' conduct violatedplaintiff's clearly established rights under the
Free Exercise Clause of the First Amendment.Finally, the court denies
defendants' motion as to Mr. Wares' requested relief because thePLRA does not
prevent prisoners from recovering nominal and punitive damages in a §
1983action.STATEMENT OF MATERIAL FACTSThe following facts are either
uncontroverted or construed in the light most favorableto Mr. Wares, the
non-moving party. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,670
(10th Cir.1998) (setting forth summary judgment standards).Mr. Wares is a
convicted felon committed to the custody of the Kansas Department ofCorrections
("KDOC"). At all times relevant to his Amended Complaint, the four named
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1This and certain other facts contained in this section are taken from Mr.
Wares'verified amended complaint. The court has relied on such information only
where hisfactual allegations are: (1) not conclusory; (2) based on Mr. Wares'
personal knowledge;and (3) would otherwise be admissible at trial. Lantec, Inc.
v. Novell, Inc., 306 F.3d 1003,1019 (10th Cir. 2002) (explaining that district
court may treat a verified complaint as anaffidavit for purposes of summary
judgment if it satisfies the standards for affidavits setforth in Rule 56(e)).
3defendants were employees of the KDOC, and Mr. Wares was confined to the
HutchinsonCorrectional Facility ("HCF"). On December 10, 1996, Mr. Wares
officially acknowledged Judaism as "his way oflife."1On January 26, 1997, Mr.
Wares filed a "Form B Change of Religion Request" withcorrectional officials, as
required by Internal Management Policy and Procedure ("IMPP") 10-110. In his
Form B, Mr. Wares changed his religious affiliation from "Assembly of Yahweh"to
"Judaism (Jewish Study Group)." Since his conversion, Mr. Wares has attempted to
complywith some of the strictest tenets of Chassidic Judaism. Sukkot is one of
the holidays observed by followers of Judaism. Sukkot is a Jewishautumn festival
of double thanksgiving (one of the three Pilgrim festivals of the OldTestament)
that begins on the 15thDay of Tishri (in September or October), five days
afterYom Kippur, the Day of Atonement. During the Sukkot holiday, observant Jews
take theirmeals and/or reside inside a Sukkah, which is a booth or tent
comprised of a walled structureand a roof. On September 26, 1997, defendant D.A.
VanBebber, the supervisory chaplain at HCF(through September of 1999), issued a
memorandum to the Captain's office discussing the
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4Jewish holidays that observant prisoners would celebrate in October of that
year. In particular,Chaplain VanBebber described Sukkot as the "Feast of
Booths," and explained that it wouldbegin after sundown on October 15, 1997, and
end at sundown on October 17, 1997. Thememorandum further informed HCF officials
that Mr. Wares would take part in thisobservance. While the memorandum
identified certain dietary and work accommodationsassociated with the holiday,
it did not contemplate that observant prisoners would take theirmeals in a
Sukkah booth. If an inmate at HCF wishes to have access to a special item that
has not been previouslyapproved or routinely provided for his religious
observance, IMPP 10-110 requires him to filea Form C "Request for Accommodation
of Religious Practices" at least fifteen (15) days priorto the particular
observance. Mr. Wares did not file a Form C or any other written request fora
Sukkah booth before the 1997 holiday. Similarly, Mr. Wares did not orally
request such anaccommodation from any prison official. While he did not take his
meals in a Sukkah, Mr.Wares participated in other Sukkot activities that year.
On September 15, 1998, Mr. Wares orally requested that Chaplain VanBebber
provideHCF inmates with a Sukkah booth for the 1998 holiday. Admittedly, Mr.
Wares did not submita Form C or any other formal written request for a Sukkah,
but Chaplain VanBebber hadpreviously responded to inmates' oral requests for
religious accommodations. In fact,Chaplain VanBebber did respond to Mr. Wares'
oral request and discussed the issue with aRabbi. Chaplain VanBebber ultimately
denied Mr. Wares' request for a Sukkah, stating that the
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5Rabbi informed him that Mr. Wares could comply with the requirements of Sukkot
by diningwith a napkin on top of his head. Skeptical of this alternative
accommodation, Mr. Wares sent an "Inmate Request toStaff Member" to Chaplain
VanBebber the next day. Therein, he stated "[w]hich Rabbi told youthis. What
exactly did this Rabbi tell you. Tora Commands Jews to dwell in a Sukkoth
Boothfor 8-days, we are required to eat our meals in a Sukkoth Booth. I do not
believe any Rabbitold you this." (Emphasis in original). In response, Chaplain
VanBebber indicated that "RabbiAloof re-confirmed the information I gave to you
about the napkin for the feast of booths. Italked with him in person when I
picked up the juice and bread for Rosh Hashanah."On September 28, 1998, Chaplain
VanBebber issued another memorandum to theCaptain's office that set forth the
Jewish holidays that would take place in October of that year.Therein, Chaplain
VanBebber explained that Jewish inmates would observe Sukkot fromOctober 5,
through October 11, 1998; that Mr. Wares would be one of the participants; and
thatduring the holiday, the "men may place a napkin on their head to signify
eating in a booth." Mr.Wares participated in other Sukkot activities in 1998,
but did not dine in a Sukkah as none wasprovided. On March 8, 1999, Mr. Wares
filed a grievance complaining that prison officials failedto provide him with a
Sukkah in October of 1998, and that Chaplain VanBebber had liedregarding the
acceptable substitute. HCF Warden Hannigan responded to the grievance inwriting,
indicating that there had been a misunderstanding between Chaplain VanBebber
andRabbi Aloof regarding the head covering, and that Chaplain VanBebber
apologized for the
Page 6
6error. The warden stated that prison officials would reevaluate the need for a
Sukkah booth forthe 1999 holiday. Plaintiff Wares questions the motives of
Chaplain VanBebber because the Chaplainadmittedly distinguishes "real jews"
(jews by birth) from "wannabe jews" (jews by conversion)such as Mr. Wares.
Chaplain VanBebber has also admitted that he grew frustrated with thedemands of
the "wannabe Jews," and believes that the "real jews" are a lot easier to work
with.Chaplain VanBebber has characterized the "wannabe jews" as mean, bitter,
spiteful, resentful,and hateful. On August 19, 1999, the defendants met with
Rabbi Aloof and Rabbi Friedman todiscuss several concerns regarding Jewish
observances. At that meeting, the Rabbis stated thatprison officials should
provide the practicing inmates with a Sukkah during the holiday.Shortly after
that meeting, prison officials ordered a Sukkah booth from the Aleph
Institute.In preparation for Sukkot of 1999, prison officials set up the Sukkah
in the prison yard.Inmates in the Jewish callout group requested stakes and
ropes to tie it down, but prisonofficials denied the request, claiming that the
stakes posed a threat to security, even thoughthere were wooden boards staked
down with wooden stakes in the same yard where the Sukkahwas located. Because
the Sukkah was not tied down, it blew around the prison yard for twodays, and
the elements caused it to tip or blow over. Mr. Wares filed a grievance
pertaining to the prison's refusal to secure the Sukkah in1999, which prison
officials denied. In the Secretary of Corrections' response to Mr. Wares
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7grievance, Secretary William L. Cummings explained that his office had "been
advised that atthe next use of this booth, staff will devise some method of
further securing [the Sukkah]."Prior to Sukkot of 2000, defendants provided a
Sukkah for inmate use, but once again,refused to secure or tie it down. As a
result, the Sukkah blew over for the first five days of theholiday. Thereafter,
prison officials staked down the Sukkah, despite their earlier contentionthat
this accommodation would create a security risk. While other members of the
Jewishcallout group used the Sukkah after prison officials staked it down, Mr.
Wares refused toparticipate, arguing that the booth had been permanently
desecrated. The same Sukkah is stillin use today by the Jewish callout group for
Sukkot observance at HCF. SUMMARY JUDGMENT STANDARDSummary judgment is
appropriate if the moving party demonstrates that there is "nogenuine issue as
to any material fact" and that it is "entitled to a judgment as a matter of
law."Fed. R. Civ. P. 56(c). In applying this standard, the court views the
evidence and all reasonableinferences therefrom in the light most favorable to
the nonmoving party. Spaulding v. UnitedTransp. Union, 279 F.3d 901, 904 (10th
Cir. 2002). A fact is "material" if, under theapplicable substantive law, it is
"essential to the proper disposition of the claim." Wright exrel. Trust Co. of
Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001)
(citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). An
issueof fact is "genuine" if "there is sufficient evidence on each side so that
a rational trier of factcould resolve the issue either way." Adler, 144 F.3d at
670 (citing Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986)).
Page 8
The moving party bears the initial burden of demonstrating an absence of a
genuine issueof material fact and entitlement to judgment as a matter of law.
Spaulding, 279 F.3d at 904(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)). In attempting to meet thatstandard, a movant that does not bear the
ultimate burden of persuasion at trial need not negatethe other party's claim;
rather, the movant need simply point out to the court a lack of evidencefor the
other party on an essential element of that party's claim. Adams v.
AmericanGuarantee & Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)
(citing Adler, 144 F.3dat 671).Once the movant has met this initial burden, the
burden shifts to the nonmoving partyto "set forth specific facts showing that
there is a genuine issue for trial." Spaulding, 279F.3d at 904 (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986));
Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324. The nonmoving party may
notsimply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at
256; accord Eck v.Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
Rather, the nonmoving party must"set forth specific facts that would be
admissible in evidence in the event of trial from whicha rational trier of fact
could find for the nonmovant." Mitchell v. City of Moore, Oklahoma,218 F.3d
1190, 1197-98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 671). To
accomplishthis, the facts "must be identified by reference to an affidavit, a
deposition transcript, or aspecific exhibits incorporated therein." Adams, 233
F.3d at 1246.Finally, the court notes that summary judgment is not a "disfavored
proceduralshortcut;" rather, it is an important procedure "designed to secure
the just, speedy and
Page 9
9inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting
Fed. R. Civ. P.1).DISCUSSIONThe defendants argue that they are entitled to
summary judgment because: (1) Mr.Wares has failed to show that defendants
conduct constitutes a violation of the Free ExerciseClause; (2) the doctrine of
qualified immunity bars Mr. Wares' claims; and (3) the PrisonLitigation Reform
Act precludes Mr. Wares from recovering nominal and punitive damages.The court
addresses each argument in turn. I.Mr. Wares' Free Exercise ClaimsMr. Wares
alleges that defendants substantially interfered with his ability to exercisehis
right to observe Sukkot in 1997 through 2000. Defendants argue that Mr. Wares
has failedto demonstrate a genuine issue of material fact as to each of these
claims. The First Amendment to the United States Constitution provides, in
pertinent part, that"Congress shall make no law respecting an establishment of
religion, or prohibiting the freeexercise thereof . . . ." U.S. Const. amend. I.
These protections apply to these state officialsthrough the due process clause
of the Fourteenth Amendment. See, e.g., Gitlow v. New York,268 U.S. 652, 666
(1925). In analyzing an inmates' Free Exercise claim, the court examines whether
the prisonofficials' conduct interfered with the prisoner's reasonable
opportunity to exercise hisreligion. The United States Supreme Court has held
that "convicted prisoners do not forfeitall constitutional protections by reason
of their conviction and confinement in prison," and that
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10"inmates clearly retain protections afforded by the First Amendment, including
its directivethat no law shall prohibit the free exercise of religion." O'Lone
v. Estate of Shabazz, 482 U.S.342, 348 (1987) (internal citation omitted). "In
some instances, however, constitutional rightsmust be curtailed due to the very
fact of incarceration or for valid penological reasons."Beerheide v. Suthers,
286 F.3d 1179, 1184 (10th Cir. 2002) (citing O'Lone, 482 U.S. at 348)."[W]hen a
prison regulation impinges on inmates' constitutional rights, the regulation is
validif it is reasonably related to legitimate penological interests." Id.
(quoting Turner v. Safley,482 U.S. 78, 89 (1987)).To balance the prisoner's
constitutional rights with legitimate penal interests, the courtconsiders:(1)
whether a rational connection exists between the prison policy regulationand a
legitimate governmental interest advanced as its justification; (2)
whetheralternative means of exercising the right are available notwithstanding
the policyor regulation; (3) what effect accommodating the exercise of the right
wouldhave on guards, other prisoners, and prison resources generally; and (4)
whetherready, easy-to-implement alternatives exist that would accommodate
theprisoner's rights. Suthers, 286 F.3d at 1185 (citing Turner, 482 U.S. at
89-91). Although Turner and O'Loneconcerned the reasonableness of prison
regulations, appellate courts have suggested that thesame framework applies when
analyzing an individual decision to deny a prisoner the abilityto engage in some
requested religious practice. See, e.g., Ford v. McGinnis, 352 F.3d 582,595 n.15
(2d Cir. 2003).A.Sukkot of 1997
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2Defendants also argued that Mr. Wares failed to exhaust his
administrativeremedies for his 1997 claim. The court does not address this issue
in light of its findingthat Mr. Wares failed to demonstrate a genuine issue of
material fact as to this claim, evenassuming that it was properly exhausted.
11In the Pretrial Order, Mr. Wares generally alleges that defendants interfered
withSukkot observance in 1997 by failing to provide a Sukkah booth. Defendants,
however, arguethat summary judgment on this claim is proper because Mr. Wares
never requested a Sukkahfor the 1997 holiday. The court agrees. The
uncontroverted summary judgment evidence establishes that Mr. Wares
neverrequested a booth for the observance of Sukkot in 1997. Moreover, Mr. Wares
participatedin all other Sukkot activities conducted within HCF during the
observance that year. Thus, itis unclear how the defendants could have
interfered with Mr. Wares' right to freely exercisehis religion. As explained
above, the Free Exercise clause requires that prison officials affordinmates
reasonable opportunities to exercise their sincerely held religious beliefs,
subject toprison restrictions rationally related to legitimate penological
interests. Hammons v. Saffle,348 F.3d 1250, 1254 (10th Cir. 2003). Claims
founded upon a violation of this right, however,presuppose the existence of a
prison regulation, policy, or other conduct that interferes withan inmates'
ability to exercise his religious beliefs. Given that Mr. Wares made no
request(formal or informal) for a Sukkah, prison officials were not even
afforded the opportunity toanalyze whether accommodating such a request would
comport with legitimate penologicalinterests. As such, plaintiff has failed to
demonstrate the existence of a genuine issue ofmaterial fact as to this claim,
and summary judgment is proper.2See, e.g., Ulmann v. 12Anderson, No. Civ. 02-405-JD, 2004 WL 883221, at *8 (D.N.H. April 26, 2004) (grantingsummary judgment on plaintiff's Religious Land Use and Institutionalized Persons Act claimwhere inmate never alerted defendants that
his religious beliefs required him to pray with ateffilin and adhere to a kosher
diet until the final days of his incarceration).B.Sukkot of 1998Mr. Wares
contends that prison officials violated his constitutional right to
observeSukkot in 1998 by denying his request to dine in a Sukkah booth during
the holiday.Defendants argue that summary judgment is proper because Mr. Wares
failed to formallyrequest a booth in advance of the holiday, and officials
allowed him to participate in all otherapproved activities for the observance of
Sukkot. First, defendants argue that Mr. Wares' request did not comply with HCF
policy. TheDepartment of Corrections' Internal Management Policy and Procedure
10-110 requires aninmate to file a Form C "Request for Accommodation of
Religious Practices" at least fifteendays prior to an observance. Mr. Wares
failed to submit a request for a Sukkah pursuant to thisinternal policy.
Instead, Mr. Wares lodged an oral request for a religions accommodation
withChaplain VanBebber. The question on summary judgment is whether Mr. Wares'
failure tocomply with IMPP 10-110 is fatal to this claim. The court finds that
Mr. Wares has demonstrated a genuine issue of material fact as towhether or not
his oral request was a legitimate method of requesting a religiousaccommodation
at HCF. While his oral request for a Sukkah did not comply with IMPP10-110,
Chaplain VanBebber had responded to inmates' oral requests for religious
Page 13
3In their statement of uncontroverted facts, defendants suggest that the
Rabbimisunderstood Chaplain VanBebber's question, and that the Rabbi intended to
convey toChaplain VanBebber the fact that inmates could dine with a napkin on
their heads as analternative to wearing yarmulkes, not as an alternative to
taking their meals in a Sukkahduring the holiday. One might infer from this
asserted fact that the defendants' conduct wasinadvertent and did not rise to
the level of an intentional constitutional violation. Defendants, however, do
not develop this implicit argument in their supporting brief. Evenif the court
were to consider this argument, summary judgment would not be proper for
tworeasons. First, Mr. Wares' summary judgment evidence suggests that the
"napkin on thehead" alternative was not the result of a miscommunication, but
instead was motivated byChaplain VanBebber's animus towards converted Jewish
inmates. To that extent, theplaintiff has successfully controverted the
defendants' asserted fact. Second, even if thenapkin on the head policy can be
attributed to a miscommunication, the defendants failed toproffer a legitimate
penological interest that was furthered by their decision. That is,
thedefendants decided to allow plaintiff to dine with a napkin over his head
instead ofproviding him with a Sukkah for the holiday. While that decision may
very well further anumber of legitimate penological interests, the defendants
did not proffer any of them. Assuch, the court cannot properly apply the Turner
framework to determine whether theyviolated plaintiff's First Amendment rights.
13accommodations in the past. In fact, Chaplain VanBebber responded to Mr.
Wares' oralrequest by discussing the issue with a Rabbi and deciding that
inmates could dine with napkinsover their head as an alternative to dining in a
booth in observance of Sukkot.3HCF officialsalso provided Mr. Wares with a
Sukkah in 1999, despite the fact that he never submitted a FormC request for
such an accommodation. Moreover, while defendants' summary judgmentevidence
demonstrates that HCF has established a formal religious accommodation
requestprocedure, the evidence fails to address the sanctions for
non-compliance. A reasonable jurorcould infer from this evidence that despite
the existence of IMPP 10-110, the course ofdealings between and conduct of the
parties established that inmates could properly request
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4In fact, defendants' argument that Mr. Wares participated in other
Sukkotaccommodations tends to undercut their assertion that Mr. Wares did not
sincerely hold hisreligious beliefs.14religious accommodations by lodging an
oral request with the supervising chaplain at HCF.As such, summary judgment is
not proper on this ground.Second, the defendant argues that HCF officials
provided observant inmates with specialdietary items and work proscription days
for Sukkot in 1998, and that Mr. Wares took part inthese accommodations.
Defendants, however, do not explain the significance of these facts.If they are
suggesting that these accommodations should have appeased Mr. Wares (anargument
that implicitly assumes that the practice of dining in a Sukkah is not a
centralcomponent of the holiday), the argument fails. While the defendants have
argued that Mr.Wares is not now and has never been an observant follower of
Judaism, plaintiff's summaryjudgment evidence suggests otherwise. Mr. Wares has
demonstrated that he converted toJudaism in December of 1996. Shortly
thereafter, on January 26, 1998, Mr. Wares filed aForm B "Change of Religion
Request," wherein he notified HCF officials that he wasconverting to Judaism.
Defendant Green admitted that Mr. Wares has been "attempting tofollow some of
the very strictest teachings of the Hasidic order of the Jewish
faith."4Morespecifically, Mr. Wares has made clear to HCF officials that he
believes the Torah requireshim to take meals in a booth during Sukkot. If the
defendants (by arguing that theaccommodations provided to inmates in 1998 were
sufficient for the observance of Sukkot)are inviting the court to question the
validity or importance of Mr. Wares' sincerely heldreligious belief that the
Torah requires him to dine in a Sukkah, we decline to do so. Mosier,
Page 15
15937 F.2d at 1526 (courts carefully avoid inquiring into the merits of
particular religiousbeliefs in an effort to gauge sincerity, and the scrutiny of
the validity of particular beliefs islargely beyond our judicial function). If,
on the other hand, defendants intend to argue that these alternative
accommodationsdemonstrate that the burden placed on Mr. Wares' Free Exercise
rights was minimal, theargument must also fail on the record before the court.
As explained above, a prison officials'conduct does not offend First Amendment
principles so long as it is reasonably related to alegitimate penological
interest. In analyzing such questions, the Tenth Circuit has found thatthe mere
diminishment, as opposed to the complete denial, of a prisoner's
religiousexperience is relevant in determining whether the proffered penological
interests suffice tojustify the infringement. Hammons v. Saffle, 348 F.3d 1250,
1256 (10th Cir. 2003) (citingMakin, 183 F.3d at 1213). The problem for
defendants, however, is that they did not profferany penological interest that
was furthered by refusing to allow Mr. Wares to eat his meals ina booth during
Sukkot of 1998. This is perfectly logical given defendants' belief that Mr.Wares
did not properly request a Sukkah, and therefore there was no "request" to
deny.Nevertheless, plaintiffs' summary judgment evidence demonstrates that there
is a genuineissue of material fact as to whether there was a proper request for
a Sukkah in 1998. Hadprison officials proffered, in the alternative, that their
decision to embrace the "napkin on thehead policy" instead of providing inmates
with a Sukkah was reasonably related to a legitimatepenological interest, Mr.
Wares would have been required to show that the profferedjustification was
invalid. Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (explaining that the
Page 16
16burden is not on the State to prove the validity of prison regulations but on
the prisoner todisprove it). Because they did not, the court is not in a
position to evaluate the claim under theTurner framework. Ford v. McGinnis, 352
F.3d 582, 596 (2d Cir. 2003) (explaining that thecourt could not properly
analyze whether defendants' decision to postpone the Eid ul Fitr feastwas
reasonably related to legitimate penological interests because defendants did
not move forsummary judgment on these grounds and the record was insufficient to
resolve the fact andcontext specific dispute); Ali v. Szabo, 81 F. Supp. 2d 447,
470 (S.D.N.Y. 2000) (denyingsummary judgment where Sheriff did not present any
evidence that the regulation restrictingkufis was reasonably related to a valid
penological interest); Brown v. Johnson, No. 98-CV-6260CJS(F), 2003 WL 360118,
at *8 (W.D.N.Y Feb. 14, 2003) (denying summary judgmentwhere defendants failed
to address how its decision to deny plaintiff therapeutic religiousalternative
meals consistent with his Muslim faith was reasonably related to
legitimatepenological interests); Roe v. Leis, No. C-1-00-651, 2001 WL 1842459,
at *3 (S.D. Ohio Jan.10, 2001) (recognizing that the court would ordinarily
examine whether infringement onprisoner's rights was reasonably related to
legitimate penological interests, but could not doso where defendants did not
offer any legitimate penological interest to justify their policy).For these
reasons, the court denies defendants' motion for summary judgment as to
Mr.Wares' claims founded on the 1998 observance of Sukkot. A.Sukkot of 1999 and
2000In the Pretrial Order, Mr. Wares argues that prison officials substantially
interferedwith his right to observe Sukkot in 1999 and 2000 by denying his
request to secure the Sukkah
Page 17
17in the prison yard. Defendants contend that the refusal to secure the Sukkah
was reasonablyrelated to the legitimate penological objective of maintaining
prison security. The court finds,however, that the evidence demonstrates a
genuine issue of material fact as to whether thisproffered justification was
merely a pretext for interfering with Mr. Wares' right to freelyexercise his
religion, and that this factual dispute precludes defendants from being entitled
tojudgment as a matter of law.Defendants contend that they refused to secure the
Sukkah in 1999 and 2000 out of aconcern that the materials required to
accomplish the task could pose a threat to prisonsecurity. Neither plaintiff nor
this court challenge the legitimacy of defendants' interest inmaintaining prison
security. Hammons, 348 F.3d at 1254-55 (recognizing that prison officialshave a
valid and legitimate interest in maintaining prison security). Instead, Mr.
Waressuggests that the defendants' actions were not actually motivated by this
legitimate penologicalinterest at the time they acted. When viewed in the light
most favorable to Mr. Wares, areasonable juror could conclude that the
defendants' stated justification was pretextual. In preparation for Sukkot of
1999, inmates in the Jewish callout group requested stakesand ropes to tie down
the newly acquired Sukkah. At the time of this request, there werealready wooden
boards secured to the ground with wooden stakes in the same yard where theprison
officials placed the Sukkah. Nevertheless, defendants denied Mr. Wares'
request,explaining that ropes and stakes could compromise prison security. As a
result, the Sukkahblew around the prison yard for two days of Sukkot, and the
elements caused it to tip or blowover. Mr. Wares filed a grievance pertaining to
the prison's refusal to secure the Sukkah in
Page 18
5Defendants suggest that Mr. Wares was able to observe Sukkot in 1999 and
2000because he dined in a Sukkah for part of the holiday. Mr. Wares' summary
judgmentevidence, however, demonstrates that his ability to dine in a Sukkah was
substantiallylimited by defendants' refusal to secure the Sukkah to the ground.
Thus, Mr. Wares hasestablished that the burden defendants placed on him
diminished the spiritual experience heotherwise could gain through Sukkot. The
Tenth Circuit has recognized that "[t]his issufficient to constitute an
infringement on his right to freely exercise his religion." Makin, 183 F.3d at
1213. Defendants also note that Mr. Wares participated in otherSukkot activities
in 1999 and 2000. As explained above, however, this does not overcomeMr. Wares'
evidence demonstrating that he sincerely believed that the Torra required himto
dine in a Sukkah during the holiday, and that prison officials interfered with
this practice. 181999. In his response, William L. Cummings, Secretary of
Corrections, explained that hisoffice had "been advised that at the next use of
this booth, staff will devise some method offurther securing [the Sukkah
booth]." Despite this assurance, defendants once again refusedto secure the
booth prior to Sukkot of 2000. As a result, the Sukkah blew over for the first
fivedays of the holiday.5Thereafter, despite earlier representations that stakes
would jeopardizeprison security, prison officials staked down the Sukkah. Mr.
Wares suggests that the defendants' animus toward converted Jews, not
concernsabout prison security, motivated their decisions with regard to Sukkot
observances. In supportof this allegation, Mr. Wares relies on the above
evidence and Chaplain VanBebbers'deposition, wherein he distinguishes "real
jews" (jews by birth) from "wannabe jews" (jews byconversion) such as Mr. Wares.
Chaplain VanBebber admitted that he grew frustrated with thedemands of the
"wannabe Jews," and believes that the "real jews" are a lot easier to work
with.Chaplain VanBebber characterized the "wannabe jews" as mean, bitter,
spiteful, resentful, andhateful. Mr. Wares contends that these attitudes are
shared by other officials at HCF and are
Page 19
6In further defense of their refusal to stake down the Sukkah, defendants argue
thatthe booth was not designed to be staked down. The fact that the prison
officialssuccessfully secured the Sukkah by staking it to the ground during the
latter part of Sukkotof 2000 demonstrates a genuine issue of material fact as to
this issue. 19manifested in their decisions pertaining to inmate observances of
Sukkot. A reasonable jurorcould conclude from this evidence that defendants were
not motivated by prison security whenthey denied Mr. Wares' requests to secure
the booth.6While Mr. Wares has demonstrated a genuine issue of material fact as
to whether or notdefendants were motivated by a concern for prison security when
they refused to secure theSukkah in 1999 and 2000, the question is whether this
factual dispute precludes defendantsfrom being entitled to judgment as a matter
of law. In other words, whether plaintiff's evidenceof pretext undermines
defendants' facially-valid justification for their conduct. For example,in some
contexts where government action is reviewed under a rational basis analysis,
thegovernment need only show that the alleged purpose behind the state action
had a conceivablerational relationship to the exercise of the state's power, and
the "true" or "actual" purpose thatmay have motivated its proponents is
irrelevant to that analysis. See, e.g., Crider v. Bd. ofCounty Comm'r of County
of Boulder, 246 F.3d 1285, 1289-90 (10th Cir. 2001) (explainingrelevant factors
in applying rational basis analysis). The court finds that such is not the
casehere, and that the defendants are not entitled to the deference afforded to
them under theTurner framework if their conduct was not actually motivated by
legitimate penologicalinterests at the time they acted.
Page 20
7Some courts analyze pretext under the first Turner factor, while other
courtsanalyze pretext as an independent prerequisite to invoking the deference
afforded underTurner. Regardless of the approach, the legal effect is the same:
evidence of pretextconstitutes a legitimate challenge to a defendant's claim
that a regulation is reasonablyrelated to a legitimate penological interest.
20As explained earlier, in balancing Mr. Wares' constitutional rights with
HCF'slegitimate penal interests, the court takes into account: (1) whether a
rational connectionexists between the prison policy regulation and the prison's
interest in safety; (2) whetheralternative means of exercising the right are
available; (3) what effect accommodating therequest would have on the prison;
and (4) whether reasonable alternatives exist that wouldaccommodate Mr. Wares'
rights. Turner, 482 U.S. at 89-91. In addition to the Turnerfactors, courts have
also considered whether the prison officials were actually motivated bythe
proffered legitimate penological interests at the time of their actions.7In
Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993), for example, the plaintiffs, who
wereinmates in the custody of the Iowa State Penitentiary, argued that
defendants violated theirconstitutional rights by forcing them to cut their
hair. At trial, the defendants argued that thehair cuts were required to quell
gang-related activity. Id. at 117. The district court rejectedthe proffered
explanation finding it to be pretextual. Id. On appeal, the prison
officialsinsisted that they had a legitimate penological interest in curtailing
gang activity. Id. at 118.The Eighth Circuit recognized that this was a valid
interest, but explained that "[p]rison officialsare not entitled to the
deference described in Turner. . .if their actions are not actuallymotivated by
legitimate penological interests at the time they act." Id. Thus, the
appellatecourt was "not called on to decide whether prison officials have a
legitimate penological
Page 21
21interest in the length of prisoners' hair, nor. . .to decide the lengths
prison officials may go incurtailing gang activity within the prison's walls."
Id. Instead, the court was "called on to. the district court's factual
determination that the prison officials in this case were notmotivated by the
legitimate interests they assert[ed]." Id. With this narrowed inquiry, theEighth
Circuit affirmed the district court because there was nothing in the record
todemonstrate that the district court's factual findings were clearly erroneous.
Id. at 119. In Abdul Jabbar-Al Samad v. Horn, 913 F. Supp 373 (E.D. Pa. 1995),
plaintiffschallenged the constitutionality of a new prison rule that prohibited
inmates from leadingreligious services. Id. at 374. The defendants explained
that the new policy was establishedto prevent possible breaches in security that
may arise when inmates attain power over otherinmates. Id. Plaintiffs, however,
alleged that Islam requires them to choose the Imam (thereligious leader) from
within their congregation, and that an outside leader would violate thistenet of
Islam. Id. As such, plaintiffs argued that enforcement of the policy violated
the FreeExercise Clause of the First Amendment. Id. The court denied defendants'
motion to dismissthis claim, in part, because the plaintiffs were able to
present a colorable claim that thesecurity considerations mentioned by the
defendants to justify the new rule were pretextual.Id. at 375.In Howard v.
United States, 864 F. Supp. 1019 (D. Colo. 1994), Judge Nottinghamaddressed, in
the context of a preliminary injunction, whether plaintiff had a right under
theFree Exercise Clause to obtain time, space and implements to perform his
Satanic rituals. At
Page 22
22the evidentiary hearing, prison officials proffered several security concerns
related to theitems plaintiff requested to fulfill his rituals. Id. at 1025. The
evidence, however,demonstrated that "many of the other religious groups
regularly use[d] these verysame–allegedly very dangerous–implements." Id. While
recognizing that prison officialshave discretion to anticipate security problems
and adopt innovative solutions to the intractableproblems of prison
administration, the court found that the primary problem with the exerciseof
discretion in this case was that the policy was not content-neutral. Id. In the
end, JudgeNottingham found that the security concerns expressed by prison
officials were pretextual, andconcluded that plaintiff had undermined the
connection between the prison regulation and thegovernmental interest in
security at the prison. Id. at 1027. In exploring First Amendment challenges
arising in comparable institutional settings,the Tenth Circuit has found that
the judiciary is obligated to explore whether a defendant'sproffered legitimate
interest is pretextual, as demonstrated in Axson-Flynn v. Johnson, 356F.3d 1277
(10th Cir. 2004). In Axson-Flynn, the plaintiff was a student of the University
ofUtah's Actor Training Program. As a practicing Mormon, Ms. Axson-Flynn
"refused to say theword `fuck' or take God's name in vain during classroom
acting exercises." Id. at 1280.Defendants, who were faculty members, told Ms.
Axson-Flynn to "get over" her refusal to usethose words, saying that her refusal
to use such language would interfere with her growth asan actress. Id. Plaintiff
refused to "get over" her refusal to say those words and eventually leftthe
program. Id. Subsequently, she brought a civil rights action claiming that the
defendantshad violated her free speech and free exercise rights under the First
Amendment. Id. The
Page 23
23district court granted summary judgment on this claim and found that
defendants were alsoentitled to qualified immunity. Id. at 1280-81. In analyzing
the free speech claim on appeal, the Tenth Circuit first found that becausethe
compelled speech was to take place in the classroom context as part of a
mandated schoolcurriculum, it clearly bore the school's imprimatur and involved
pedagogical interests. Id. at1290. As such, the Tenth Circuit applied the legal
framework set forth in Hazelwood Sch.Dist. v. Kuhlmeier, 484 U.S. 260 (1988),
which provides that an educator's decision to restrictor compel speech is
constitutional so long as it is "reasonably related to legitimatepedagogical
concerns." Axson-Flynn, 356 F.3d at 1290. Under this framework, courts
give"substantial deference" to the educator's stated pedagogical concerns. Id.
In Axson-Flynn, the defendants argued that their restriction on plaintiff's
speechadvanced the school's pedagogical interest in teaching acting in at least
three ways: (1) it taughtstudents how to step outside their own values and
character by forcing them to assume a veryforeign character and to recite
offensive dialogue; (2) it taught students to preserve theintegrity of the
author's work; and (3) it measured true acting skills to be able convincingly
toportray an offensive part. Id. at 1291. Although the appellate court did not
second-guess thepedagogical wisdom or efficacy of these goals, it explained that
"we would be abdicating ourjudicial duty if we failed to investigate whether the
educational goal or pedagogical concernwas pretextual." Id. at 1292-93. Thus,
the court found that it could "override an educator'sjudgment where the
proffered goal or methodology was a sham pretext for an impermissibleulterior
motive." Id. at 1293. In applying this concept, the Tenth Circuit concluded that
Page 24
8Defendants also note that in Searles v. Bruce, et. al., No. 01-3379-JTM, (D.
Kan.Oct. 20, 2003), Judge Marten granted summary judgment in favor of defendants
on Mr.Searles' free exercise claim, which was founded on the same events giving
rise to Mr.Wares' claims in 1999 and 2000. A review of that order and summary
judgment record,however, makes clear that the factual record in the two cases
are materially distinguishable. Quite simply, Mr. Wares has controverted
material facts that were undisputed in Searles,and he has raised factual
disputes, such as whether the defendants' proffered justificationswere
pretextual, that were not at issue in Searles. 24summary judgment was
inappropriate because, when viewed in the light most favorable to
Ms.Axson-Flynn, the evidence demonstrated that there was a genuine issue of
material fact as towhether the defendants' justification for the script
adherence requirement was trulypedagogical or whether it was a pretext for
religious discrimination. Id.The court believes that the Tenth Circuit would
apply the same rationale to Mr. Wares'challenge, in part, because the legal
framework for analyzing a free speech claim in the school-sponsored speech
context is nearly identical to the framework used to analyze FirstAmendment
challenges to prison regulations and the acts of prison officials. In
bothsituations, an infringement on an individual's first amendment rights does
not offendconstitutional principles so long as it is reasonably related to a
legitimate institutional concernor interest. Moreover, in both contexts, courts
give substantial deference to the official'sstated justification. In light of
the above analysis, the court denies defendants' motion for summaryjudgment
because there is a genuine factual dispute as to whether defendants'
profferedsecurity justification is pretextual, which precludes defendants from
being entitled to judgmentas a matter of law.8
Page 25
25II.Qualified ImmunityDefendants contend that the doctrine of qualified
immunity warrants summary judgmentagainst the plaintiff. "Qualified immunity
shields public officials from section 1983 liabilityif their actions did not
`violate clearly established statutory or constitutional rights of whicha
reasonable person would have known.'" Axson-Flynn, 356 F.3d at 1299 (quoting
Pino v.Higgs, 75 F.3d 1461, 1467 (10th Cir. 1996)). Qualified immunity is "an
entitlement not tostand trial or face the other burdens of litigation." Mitchell
v. Forsyth, 472 U.S. 511, 526(1985). The purposes underlying the doctrine of
qualified immunity require the court to analyzesummary judgment motions invoking
this doctrine differently from other summary judgmentmotions. Medina v. Cram,
252 F.3d 1124, 1128 (10th Cir. 2001). "When a defendant makesa qualified
immunity claim on summary judgment, the plaintiff has the burden initially to
makea twofold showing: First, the plaintiff must show that the defendant's
alleged conduct violatedthe law." Axson-Flynn, 356 F.3d at 1299 (internal
citation and quotation marks omitted)."Second, the plaintiff must show that the
law was clearly established when the alleged violationoccurred." Id. "Order is
important; we must decide first whether the plaintiff has alleged
aconstitutional violation, and only then do we proceed to determine whether the
law was clearlyestablished." Saucier v. Katz, 533 U.S. 194, 200 (2001). "In
rebutting a qualified immunityclaim at the summary judgment level, a plaintiff
can no longer rest on the pleadings and thecourt looks to the evidence before it
(in the light most favorable to the plaintiff)."Axson-Flynn, 356 F.3d at 1299
(internal citation and quotation marks omitted). "Once the
Page 26
26plaintiff makes this showing, the defendant bears the usual burden of a party
moving forsummary judgment to show that there are no genuine issues of material
fact and that he or sheis entitled to judgment as a matter of law." Id. at
1299-1300. "More specifically, thedefendant must show that there are no material
factual disputes as to whether his or her actionswere objectively reasonable in
light of the law and the information he or she possessed at thetime." Id. at
1300. "At all times during this analysis, we evaluate the evidence in the light
mostfavorable to the nonmoving party." Id. A.Did the Alleged Conduct Violate the
LawMr. Wares has alleged that in 1998 he made a proper request for the Sukkah
that prisonofficials denied without any justification. As to his claims in 1999
and 2000, Mr. Wares hasalleged that the defendants refusal to secure the Sukkah
interfered with his observance ofSukkot and that the defendants' proffered
justification was pretextual. More importantly, asdescribed above, Mr. Wares has
provided evidence creating an issue of fact as to thesearguments. Therefore, Mr.
Wares has properly shown that the alleged conduct violated hisrights under the
First Amendment, thereby satisfying the first prong of the qualified
immunityanalysis. See Axson-Flynn, 356 F.3d at 1300 (finding that plaintiff
satisfied first prong ofqualified immunity analysis on summary judgment where
she alleged facts supporting aviolation of the First Amendment and provided
evidence in support thereof on summaryjudgment).B.Was Mr. Wares' Constitutional
Right Clearly Established at the Time ofthe Alleged Violation?
Page 27
27In its order denying defendants' motion to dismiss Mr. Wares' amended
complaint, thecourt found that a prisoner's right to reasonable meal and dining
accommodations that complywith his or her religious beliefs was clearly
established at the time of the alleged misconduct.Defendants have not raised any
new legal arguments or facts that would alter this conclusion.Nevertheless,
recent Supreme Court and Tenth Circuit precedent warrant additional discussionof
this issue.Defendants correctly observe that if a constitutional violation has
occurred, they maynevertheless be entitled to immunity if their actions did not
violate "clearly establishedstatutory or constitutional rights of which a
reasonable person would have known." Harlowv. Fitzgerald, 457 U.S. 800, 818
(1982). To be clearly established, the contours of theconstitutional right "must
be sufficiently clear that a reasonable official would understand thatwhat he is
doing violates that right." Anderson v Creighton, 483 U.S. 635, 640 (1987).
"Thisis not to say that an official action is protected by qualified immunity
unless the very actionin question has previously been held unlawful, but it is
to say that in the light of pre-existinglaw the unlawfulness must be apparent."
Id. (internal citation omitted). In an effort to summarize and synthesize the
"clearly established law" requirement, theSupreme Court recently explained:
[O]fficials can still be on notice that their conduct violates established law
evenin novel factual circumstances. Indeed, in Lanier, we expressly rejected
arequirement that previous cases be "fundamentally similar." Although
earliercases involving "fundamentally similar" facts can provide especially
strongsupport for a conclusion that the law is clearly established, they are
notnecessary to such a finding. . . . [T]he salient question. . .is whether the
state of
Page 28
28the law [at the time of the conduct] gave respondents fair warning that
theiralleged treatment of [plaintiff] was unconstitutional. Hope v. Pelzer, 536
U.S. 730, 741 (2002). Through this analysis, "Hope thus shifted thequalified
immunity analysis from a scavenger hunt for prior cases with precisely the same
factstoward the more relevant inquiry of whether the law put officials on fair
notice that thedescribed conduct was unconstitutional." Pierce v. Gilchrist, 359
F.3d 1279, 1298 (10th Cir.2004). Thus, the question here is whether the law put
defendants on fair notice that their actsand omissions, as characterized by the
plaintiff's summary judgment evidence, wereunconstitutional. As early as 1972,
the United States Supreme Court has held that under the Free ExerciseClause,
prison officials must provide inmates with a reasonable opportunity to pursue
his orher religion. Cruz v. Beto, 405 U.S. 319, 322 (1972). In 1987, the Supreme
Court clarifiedthat what constitutes a reasonable opportunity to pursue one's
religion had to be evaluated withreference to legitimate penological objectives.
Turner v. Safley, 482 U.S. 78, 89 (1987);O'Lone v. Estate of Shabazz, 482 U.S.
342, 349 (1987). As early as 1991, the Tenth Circuithad adopted and applied this
constitutional framework in challenges to prison regulations thatallegedly
interfered with inmates' First Amendment rights. See, e.g., Mosier v. Maynard,
937F.2d 1521, 1525 (10th Cir. 1991). More pertinent to the facts here, since
1991, the TenthCircuit has held that the First Amendment guarantees prisoners
the right to reasonable dietaryand meal accommodations that comport with their
religious beliefs. LaFevers v. Saffle, 936F.2d 1117, 1119 (10th Cir. 1991).
Here, Mr. Wares established a genuine issue of material
Page 29
9It is also worth noting that defendants failed to discuss or analyze any prevailing law to support their claim that Mr. Wares' right was not clearly established at the time of the alleged conduct. Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001) (qualified immunity will not be granted if government defendants fail to make reasonable applications of the prevailing law to their own circumstances).10Defendants continue to argue that there is no clearly established constitutional right to be provided a staked-down Sukkot booth. As explained in its order denying defendants' motion to dismiss, the defendants characterize Mr. Wares' rights too narrowly. As the Supreme Court and Tenth Circuit have clarified, the plaintiff need not identify prior cases with precisely the same facts as alleged here. Instead, Mr. Wares must show that the established law put officials on fair notice that the conduct (as described by the plaintiff)was unconstitutional. As explained in this section, the court finds that he has satisfied this burden.29 fact that defendants refused to make reasonable meal and dining accommodations during Sukkot (by providing him with a Sukkah or by failing to properly secure the Sukkah), and thatthis decision was not founded upon legitimate penological interests. The case law discussed above gave defendants fair notice that such conduct would violate Mr. Wares' rights under the First Amendment. See Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 n.4 (1999) (explaining in dicta that Turner, Shabazz, Mosier, and LaFevers clearly established a prisoner's right to the reasonable opportunity to exercise his or her religion, including the right to reasonable dietary restrictions based on religious beliefs).9As such, Mr. Wares has satisfied the second prong of the qualified immunity analysis.10III.The Prison Litigation Reform ActMr. Wares seeks to recover nominal and punitive damages stemming from the alleged constitutional violations. The defendants contend that the PLRA precludes such a recovery.The court disagrees.
Page 30
30 Section 803(d) of the PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. §1997e(e). As such, the plain language of the statute limits the plaintiff's right to recover compensatory damages, if the only injuries are mental or emotional. Searles v. Van Bebber, 251 F3d 869, 876 (10th Cir. 2001). In Searles, however, the Tenth Circuit held that "section 1997e(e) does not barrecovery of nominal damages for violations of prisoners' rights."

Id. at 879 (citing Rowe v.Shake, 196 F.3d 778, 781-82 (7th Cir. 1999). The court reasoned that such a recovery was proper given that nominal damages have traditionally served as the appropriate means of vindicating rights whose deprivation has not caused actual, provable injury, and becauseCongress did not attempt to alter that rule in the PLRA. Id. at 878-89. In fact, the TenthCircuit explained that "the rule seems to be that an award of nominal damages is mandatory upon a finding of a constitutional violation. . . ." Id. at 879.Similarly, the Searles courtfound that punitive damages remain available, in the proper circumstances, in prisoner actions under § 1983. Id. at 881. In reaching this conclusion, the court found salient the fact that"Congress simply did not choose to provide a restriction on punitive damages" when it enacted the PLRA. Id. In light of this controlling authority, the court denies defendants motion for summary judgment on this ground.



Page 31

31In the end, the court grants the defendants; motion for summary judgment on Mr.Wares' Free Exercise claim related to the observance of Sukkot in 1997 because he failed torequest any accommodation from prison officials. The court denies summary judgment as toMr. Wares' Free Exercise claims related to the observance of Sukkot in 1998 because Mr.Wares orally requested a Sukkah booth, and there is a genuine factual dispute as to whether this was a proper method of requesting accommodations. The court denies summary judgment as to Mr. Wares' Free Exercise claims related to the observance of Sukkot in 1999 and 2000because he has demonstrated a genuine issue of material fact as to whether the defendants'stated justification for their conduct was merely a pretext for infringing upon his Free Exercise rights. Moreover, defendants are not entitled to summary judgment on qualified immunity grounds (as to these surviving claims) because Mr. Wares has shown that his right to reasonable dining and meal accommodations that comport with his religious practices was clearly established at the time of the asserted violations, and defendants have failed to show that there are no material factual disputes as to whether their actions were objectively reasonable in light of the law and the information they possessed at the time. Finally, the court denies summary judgment as to Mr. Wares' requests for nominal and punitive damages because the Tenth Circuit has found that the PLRA does not preclude such recoveries.


Page 32

32IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion for summary judgment (Doc. 142 ) is granted in part and denied in part. IT IS SO ORDERED this 28thday of May, 2004.s/ John W. Lungstrum

John W. Lungstrum
United States District Judge


United States Court of Appeals
Tenth Circuit
Filed December 14, 2004
Patrick Fischer, County Clerk
This is the html version of the file


MARK A. WARES,  Plaintiff-Appellant, v. CHARLES SIMMONS, Kansas Secretary of Corrections; STEVE DECHANT, Deputy Warden of Programs, Hutchinson Correctional Facility,
No. 04-3150
(D.C. No. 00-CV-3393-GTV)

Submitted on the briefs: Mark A. Wares, pro se.

Phill Kline, Attorney General, Brian D. Sheern, Assistant Attorney General, Topeka, Kansas, for Defendants-Appellees.

Before LUCERO, McKAY, and PORFILIO, Circuit Judges.

LUCERO, Circuit Judge.

Mark A. Wares, a Kansas inmate appearing pro se, filed an action pursuant to 42 U.S.C. § 1983 alleging that prison officials have denied him access to essential religious texts in contravention of the First Amendment.1 The district court dismissed the action for failure to state a claim. We VACATE and REMAND for further proceedings.

I. Wares was convicted of aggravated sexual battery and making a terrorist threat.2 While on parole from these charges, he was convicted of kidnaping and aggravated battery. He is presently serving a sentence of twenty to forty-five years.

In 1993, the Kansas Department of Corrections ("Corrections Department") attempted to induce Wares to enroll in the Sexual Abuse Treatment Program ("SATP"). He refused on the ground that he did not wish to disclose his full sexual history, as SATP requires. In response, the Corrections Department elevated Wares' security status and imposed a variety of new restrictions on him, including denial of access to religious texts and study materials.3

Wares then filed this § 1983 action alleging that the imposition of punitive restrictions in response to his refusal to disclose his sexual history infringed on his Fifth Amendment privilege against compelled self-incrimination. He also contended that denying him access to religious materials violated his First Amendment right to the free exercise of religion. The district court dismissed the suit based on the Supreme Court's decision in McKune v. Lile, 536 U.S. 24 (2002), which rejected a Fifth Amendment challenge to Corrections Department policies designed to induce inmates to enroll in SATP.

II.  In this appeal, Wares has not reiterated his Fifth Amendment claim. Instead, he contends that (1) the Corrections Department's actions violated a binding contract between him and the Corrections Department and (2) the Corrections Department violated his right to free exercise of religion by confiscating essential religious texts. Wares did not raise the first claim in the district court and we therefore do not consider it. See Allison v. Bank One-Denver, 289 F.3d 1223, 1244 (10th Cir. 2002). With respect to the second claim, we conclude that additional development of the record is required to assess whether this claim has merit.

We initially address the district court's reliance on McKune to deny relief on Wares' First Amendment claim. The plaintiff in McKune was, like Wares, a Kansas inmate who refused to enroll in SATP because the program requires participants to confess their past sexual offenses. See McKune, 536 U.S. at 30-31 (plurality opinion of Kennedy, J.). The Supreme Court held that the Corrections Department's policy did not violate the Fifth Amendment. See id. at 29 (plurality opinion).

McKune does not apply here. The issue in McKune was whether the Fifth Amendment bars the Corrections Department from imposing any restrictions on inmates who refuse to enroll in SATP. The issue here is whether a particular restriction – limited access to religious materials – is lawful under the First Amendment.

The First Amendment does not preclude prisons from restricting inmates' religious practices, so long as "prison authorities afford prisoners reasonable opportunities to exercise their sincerely held religious beliefs." Hammons v. Saffle, 348 F.3d 1250, 1254 (10th Cir. 2003). Four factors must guide a court's assessment of the reasonableness of constraints on religious practice:

First, the court considers whether there is a logical connection between the prison regulation and the asserted penological interest. Second, the court considers whether alternative means of exercising the religious right in question remain open to inmates. Third, the court assesses the impact the accommodation of the right in question would have on guards, other inmates, and on the allocation of prison resources. Fourth, the court considers whether any policy alternatives exist that would accommodate the right in question at de minimis cost to the prison.

Id. at 1255 (citations omitted).

With respect to the first factor, there is considerable uncertainty in the record. As noted above, the Corrections Department responded to Wares' refusal to participate in SATP by transferring him to a higher-security facility and limiting his privileges. The record does not reveal whether the restriction on possession of religious texts was imposed specifically to induce Wares to participate in SATP or whether it is simply a standard policy at Wares' new institution. If it was the former, it could be argued that the practice of religion promotes rehabilitation and that depriving Wares of religious texts inhibits the Corrections Department's rehabilitative goals. Indeed, Wares expressly maintains that his religion fosters his rehabilitation more effectively than any program with which he has ever been involved. If Wares' books were confiscated not because of his refusal to participate in SATP, but rather pursuant to the regulations at his new facility, we do not have sufficient information to identify the basis for those regulations or evaluate whether they are logically connected to valid penological goals. This uncertainty weighs in favor of vacating the dismissal of Wares' complaint and remanding for further development of the record.

The second factor weighs even more strongly in favor of Wares' appellate claim, as the record does not permit us to conclude that Wares has an alternative means of practicing his religion. The Corrections Department argues that "Wares has his primary religious text and is allowed . . . to practice his religion without the extra materials" he claims he needs. (Appellee's Br. at 9-10.) Wares asserts, however, that the Tehillim and Tanya "are required for daily use," (Appellant's Br. at 4B), and their confiscation has undermined his "ability to practice and progress in his Jewish faith." (R., Tab 50 at 3.) On appeal from the dismissal of a pro se complaint, we must construe the plaintiff's pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept their allegations as true, see Gonzales, 366 F.3d at 1096. Accordingly, we are constrained to conclude – for purposes of this appeal – that Wares has been compelled to practice a stunted version of his religion that is an inadequate alternative to the full implementation of his sincerely held religious beliefs.

Like the first factor, the third factor – "the impact the accommodation of the right in question would have on guards, other inmates, and on the allocation of prison resources" – cannot be evaluated on the current record. Wares' primary desire is to regain possession of two religious texts. Because the district court dismissed Wares' complaint for failure to state a claim, the Corrections Department has never presented any evidence showing that granting Wares the privileges he seeks would interfere with the administration of the prison. In the absence of such evidence, we must weigh this factor in Wares' favor. Cf. Beerheide v. Suthers, 286 F.3d 1179, 1189-91 (10th Cir. 2002) (rejecting prison's arguments relating to impact of serving kosher meals where no evidence in record supported those arguments).

Finally, we must assess "whether any policy alternatives exist that would accommodate the right in question at de minimis cost to the prison." Once again, the record is insufficient to support the dismissal of Wares' complaint. If Wares' books were taken from him specifically to pressure him into participating in SATP, the Corrections Department might be able to achieve the same effect by cancelling other privileges – not implicating the First Amendment – while allowing Wares to retain his religious texts. If the rules of Wares' current facility require confiscation of his texts, we cannot say what the purpose for these rules is or whether the same purpose could be achieved in another manner. Thus, as with the first factor, we find ambiguity in the record that supports reinstatement of Wares' suit.

III.  For the reasons stated above, we conclude that all of the factors we are required to consider support Wares' appellate claim. Accordingly, we vacate the dismissal of his complaint and remand for further proceedings. We emphasize that we do not hold that Wares is entitled to the relief sought in his complaint, but only that he is entitled to pursue his First Amendment claim beyond the stage at which his complaint was dismissed.

The judgment of the district court is VACATED.



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